Bronx Personal Injury & Real Estate Blog

When does the statute of limitations start in medical malpractice claim in New York?

A consortium of advocacy groups is pressing NY Gov. Andrew Cuomo and legislative leaders to take action on Lavern's Law, legislation that would alter the landscape of medical malpractice law in New York. The bill, which was approved by the Assembly last year, would revise the statute of limitations. Currently the clock begins tolling when a medical mistake occurs. Lavern's Law, however, would start the window not when the negligence occurs, but rather when the patient first discovers he or she has been harmed by the error. New York is among a small group of 6 states that do not have a date of discovery rule.

What is Medical Malpractice?

Medical malpractice occurs when a doctor's care falls below the appropriate standard and causes harm to a patient. Medical malpractice claims often arise because of a misdiagnosis or failure to diagnose. In order to bring a medical malpractice case, a patient must show that the doctor was negligent and that the doctor's mistake directly caused the injury. It is also necessary to demonstrate that the standard of care fell below what a reasonably skilled physician would provide under the same circumstances. Finally, the victims must also have suffered harm such as physical pain, mental anguish, additional medical bills, and lost work and earnings.

Lavern's Law at a Glance

The bill was named after Lavern Wilkinson who died in 2013 from a curable form of lung cancer that doctors at Kings County Hospital misdiagnosed. An X-ray taken in 2010 revealed a small suspicious mass, but doctors never told Ms. Wilkinson. By the time she was told she had terminal lung cancer in 2012, the statute of limitations had run out. She left behind a 15-year-old a severely disabled, autistic child who needs round-the-clock care. Some legal observers believe had she prevailed in a medical malpractice lawsuit, she would have been awarded up to $10 million which would have paid for the child's care.

In a letter sent in May to the governor and lawmakers, the advocacy groups said the existing rule unfairly penalizes victims of medical errors who discover they have been harmed after the statute of limitations has expired. They also believe the current tolling period "weakens incentives for hospitals and doctors to improve patient safety measures so that these harmful incidents never happen in the first place.”